Volume 93 — No. 9 — November 2022 ALSO INSIDE: OBA Diversity Award Winners Announced • Annual Meeting New Lawyers Take Oath • 2023 Committee Sign-up Municipal Law
PLUS 44 OBA Diversity Award Winners Announced 49 Annual Meeting 50 New Lawyers Take Oath 54 2023 Committee Sign-up THEME: Municipal Law Editor: Roy Tucker On the cover: Stillwater Municipal Building, photo by Lori Rasmussen. FEATURES 6 Municipal Law: Come Join Us Under the Big Top! By Beth Anne Childs 10 Municipal Planning and Zoning: An Overview of State Statutes and Standards for Review By Beth Anne Childs 16 Municipalities and the Open Meeting Act By Julie Trout Lombardi 22 Oklahoma Governmental Tort Claims Act By Jeff Harley Bryant 32 The Essential Eminent Domain Concepts By Nick Atwood 40 Evaluating the Jurisdiction of Municipal Courts After Castro-Huerta By Matthew Love DEPARTMENTS 4 From the President 58 From the Executive Director 60 Law Practice Tips 64 Board of Governors Actions 68 Oklahoma Bar Foundation News 71 Young Lawyers Division 72 For Your Information 74 Bench & Bar Briefs 78 In Memoriam 83 Editorial Calendar 88 The Back Page PAGE 44 – OBA Diversity Award Winners Announced PAGE 50 – New Lawyers Take Oath contents November 2022 • Vol. 93 • No. 9
THE OKLAHOMA BAR JOURNAL 4 | NOVEMBER 2022 strict rules requiring armed guards at the homes and in the courtrooms of Tulsa’s district judges. The Tulsa County Bar Association immediately posted a $25,000 reward leading to the arrest and conviction of the bomber. Judge Nelson returned to the bench Oct. 6, 1971, having been re-elected. A Tulsa native, he had been appointed in 1967 by Gov. Dewey Bartlett. His daughter, Jill Nelson Thomas, continues to be a member of the OBA. As a grand jury was impaneled to investigate the bombing, even more shocking events filled the news. On Sept. 26, 1970, E.C. Mullendore III was beaten and shot to death in his Osage County home on the Cross Bell Ranch. His bodyguard, Chub Anderson (now deceased), claimed two intruders killed Mullendore, but Anderson continues to be a primary suspect. The story was the biggest murder case in the history of northeastern Oklahoma and remains unsolved to this day. The Mullendore Murder Case, written in 1974 by Johnathan Kwitny, is a definitive account continued on page 57 THE PRACTICE OF LAW has a way of confronting us with our insecurities and imperfections. For me, practicing law has been simultaneously painfully awkward, hilariously comical and immensely powerful. However witty we think we are, whatever memorable lines we employ in arguments or briefings to the court, we cannot escape moments of self-doubt. I jokingly say that my motto has been “often wrong, seldom in doubt.” In mediations and in courtrooms, agreeing to disagree is what attorneys do every day. While our society appears divided over numerous issues that manifest in the workplace, courtroom and in threats against law enforcement and judges, lawyers are uniquely positioned to lead the way in civility and collaboration. Our clients look to us for guidance on how to behave and how to handle the stress associated with legal issues and concerns. Those who decry a lack of civility in today’s social interactions need members of our organization to keep calm and uphold the rule of law. The memorable opening scene of the Martin Scorsese film Casino, about early 1970s Las Vegas, shows a bomb blast engulfing the car of the character played by Robert DeNiro as he starts the ignition. Similar events occurred in Tulsa County. On Aug. 25, 1970, Tulsa County District Judge Fred Nelson was the target of an Election Day assassination attempt. As he turned the ignition switch of his blue station wagon, an explosion tore the front end of the car apart, throwing more than 20 pieces of shrapnel into him. The bombing took place in the driveway of his home, across the street from Edison High School. Judge Nelson survived the attack but was left critically injured. Presiding Judge Robert Simms issued Civics, Civility and Collaboration: Lawyers Can Lead the Way From The President By Jim Hicks President Hicks practices in Tulsa. jhicks@barrowgrimm.com (918) 584-1600 Tulsa County District Judge Fred S. Nelson was critically wounded in an August 1970 car bombing but later recovered and returned to the bench. Photo courtesy of the Tulsa World.
NOVEMBER 2022 | 5 THE OKLAHOMA BAR JOURNAL JOURNAL STAFF JOHN MORRIS WILLIAMS Editor-in-Chief johnw@okbar.org LORI RASMUSSEN Managing Editor lorir@okbar.org EMILY BUCHANAN HART Assistant Editor emilyh@okbar.org LAUREN RIMMER Advertising Manager advertising@okbar.org KIEL KONDRICK Digital Content Specialist kielk@okbar.org Volume 93 — No. 9 — November 2022 JAMES R. HICKS, President, Tulsa; MILES T. PRINGLE, Vice President, Oklahoma City; BRIAN T. HERMANSON, President-Elect, Ponca City; MICHAEL C. MORDY, Immediate Past President, Ardmore; ANGELA AILLES BAHM, Oklahoma City; S. SHEA BRACKEN, Edmond; DUSTIN E. CONNER, Enid; MICHAEL J. DAVIS, Durant; ALLYSON E. DOW, Norman; JOSHUA A. EDWARDS, Ada; AMBER PECKIO GARRETT, Tulsa; BENJAMIN R. HILFIGER, Muskogee; ROBIN L. ROCHELLE, Lawton; KARA I. SMITH, Oklahoma City; MICHAEL R. VANDERBURG, Ponca City; RICHARD D. WHITE JR., Tulsa; DYLAN D. ERWIN, Chairperson, OBA Young Lawyers Division, Oklahoma City The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. and at additional mailing offices. Subscriptions $60 per year. Law students registered with the OBA and senior members may subscribe for $30; all active members included in dues. Single copies: $3 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2022 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR CENTER STAFF John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Chris Brumit, Director of Administration; Jim Calloway, Director of Management Assistance Program; Janet K. Johnson, Director of Educational Programs; Beverly Petry Lewis, Administrator MCLE Commission; Lori Rasmussen, Director of Communications; Richard Stevens, Ethics Counsel; Robbin Watson, Director of Information Technology; Loraine Dillinder Farabow, Peter Haddock, Tracy Pierce Nester, Katherine Ogden, Steve Sullins, Assistant General Counsels Barbara Acosta, Les Arnold, Julie A. Bays, Gary Berger, Jennifer Brumage, Craig Combs, Cheryl Corey, Alisha Davidson, Nickie Day, Ben Douglas, Melody Florence, Johnny Marie Floyd, Matt Gayle, Emily Buchanan Hart, Suzi Hendrix, Jamie Jagosh, Debra Jenkins, Kiel Kondrick, Rhonda Langley, Durrel Lattimore, Brian Martin, Renee Montgomery, Lauren Rimmer, Tracy Sanders, Mark Schneidewent, Kurt Stoner, Krystal Willis, Laura Willis & Roberta Yarbrough Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAX 405-416-7001 Continuing Legal Education 405-416-7029 Ethics Counsel 405-416-7055 General Counsel 405-416-7007 Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070 www.okbar.org OFFICERS & BOARD OF GOVERNORS BOARD OF EDITORS MELISSA DELACERDA, Stillwater, Chair AARON BUNDY, Tulsa CASSANDRA L. COATS, Vinita W. JASON HARTWIG, Clinton C. SCOTT JONES, Oklahoma City JANA L. KNOTT, El Reno BRYAN W. MORRIS, Ada EVAN ANDREW TAYLOR, Norman ROY TUCKER, Muskogee DAVID E. YOUNGBLOOD, Atoka
NOVEMBER 2022 | 7 THE OKLAHOMA BAR JOURNAL Municipal Law By Beth Anne Childs AT THE END OF THE MOVIE ARGO, CIA operative Tony Mendez is told by his boss, Jack O’Donnell, that he will be receiving the Intelligence Star, one of the highest honors of the clandestine services. Tony requests to push receipt of the award off a week so his son can attend. Jack advises him that the award is classified, and no one can know about it. Tony’s response is, “So they are going to give me an award and then take it back.” Jack acknowledges that is the case and says, “If we’d wanted applause, we would have joined the circus.” I have spent the better part of my 29-year career in public service, particularly representing municipalities. I frequently remind my elected and appointed officials that what they do is important, and if they want applause, they should join the circus. Although that analogy is not always well received, it drives home the point that public service should be performed not to receive accolades but to make decisions that advance their communities for the public good. Although to some, municipal governments can be viewed as a circus, it is far from a series of entertaining events. It is rather the level of government that most directly impacts its citizens on a daily basis. Elected and appointed officials are public servants and need to appreciate that the decisions they make are not always popular or easy and certainly may not result in a standing ovation. THE MUNICIPAL ATTORNEY An important part of any wellrun municipality is the local government lawyer. In recent years, I have concentrated my practice on the representation of smaller municipalities. One evening, I had a gentlemen approach me following a board meeting, where the feasibility of hiring a police chief was discussed at length. He told me that hiring a police chief was very important to the town, and while he didn’t have much, he had worked hard for what he had. I have never forgotten what he said and frequently use his remarks as a reminder to work hard to help communities find solutions to their most important and challenging issues. Most attorneys don’t fully appreciate that municipal law is highly specialized, requiring knowledge, information and experience in a vast number of areas. It is common for municipal attorneys to advise on matters involving public finance, land use, planning and zoning, eminent domain, torts, complex transactions, open meetings, open records, criminal, labor, employment, public trusts, purchasing, competitive bidding and constitutional interpretation and application. Municipal budgets are, more often than not, heavily dependent upon sales tax collections, a fairly volatile source of revenue. This creates budgetary constraints on cities and towns struggling to provide basic services like fire and police protection, water and sanitary sewer service and solid waste removal. Further complicating the problem is the attitude of elected officials who expect attorneys to represent their cities and towns either for free or at a greatly reduced rate as part of their civic duty. This perspective does a disservice to the attorneys and the city and town officials who fail to appreciate the complexity of the issues handled by local government practitioners, the time required to research and prepare municipal legal documents and the many nuances of the practice that can protect cities and towns from liability. Municipal Law: Come Join Us Under the Big Top!
THE OKLAHOMA BAR JOURNAL 8 | NOVEMBER 2022 THE THREE RINGS Support Your City or Town Attorney In my experience, the average municipal attorney handles 33 different matters in any given week. Because of the diversity in practice, it can take numerous hours to get up to speed on a particular issue. The average reported law school debt of $160,0001 further complicates the ability of small cities and towns to recruit and retain attorneys. Also, the larger Oklahoma municipalities are playing a decreased role as a training ground for municipal attorneys who may be able to later serve smaller cities and towns. In the past, attorneys would gain experience in larger cities and then gravitate toward smaller municipalities. For a variety of reasons, there has been lower turnover in the larger offices. Increasingly, openings in entry-level positions are being filled with experienced attorneys, which, in turn, further reduces the pool of qualified municipal attorneys available to provide representation to smaller cities and towns. Except for those attorneys who have stable practices, few can afford to represent cities and towns, keep up with the vast array of changes to laws affecting municipalities, learn all the different types of law associated with the representation of municipal clients and attend quality continuing legal education on topics of importance to local government lawyers. The politics, egos, negative press, diminishing qualified workforce and other challenges also make representing municipalities far less attractive. Supporting your municipal attorney with words of wisdom, offering to conduct research on a particular issue and providing “heads-up” conversations in advance of public meetings all make a big difference and go a long way toward retaining quality municipal attorneys. I would encourage you to support your community by recognizing the difficulty and complexity of local government practice and offering to lend a hand when necessary. Volunteer There are many ways you can support your municipality. One of the biggest challenges I have noticed is the inability of city councils and boards of trustees to find qualified individuals to serve on their respective planning commissions and boards of adjustment. Municipalities cannot enforce their zoning codes without having active commissions and boards. In the smaller municipalities, these bodies meet once a month or less. Participation provides a tremendous benefit to your locality, and experience as an attorney can be invaluable to evaluation of the numerous types of issues decided. Also, be an advocate for your community! Pay attention to job postings in your city or town, encourage good people to apply, watch for economic development opportunities and support the folks who pick up your trash, fix your water leaks and stand in the freezing cold to repair sanitary sewer lines. Rather than simply expressing frustration with local governments and their employees, commit to providing support and working to make things better. Shop locally and work to ensure that your tax dollars support your local government.
NOVEMBER 2022 | 9 THE OKLAHOMA BAR JOURNAL Join Us! Representation of municipalities is challenging, rewarding and important. We are a very collegial, experienced group who tirelessly work to recruit and retain quality municipal practitioners. Those of us who have done this for many years will assist you with the resources you need to be successful. All you need is the commitment to learn and the desire to practice law for the public good. In recent years, the Oklahoma Association of Municipal Attorneys (OAMA), the Oklahoma Municipal Assurance Group (OMAG) and the Oklahoma Municipal League (OML) have worked diligently to increase educational opportunities and provide additional support to local government attorneys. These organizations, as well as the International Municipal Lawyers Association (IMLA), tirelessly work in support of the municipal attorney. The resources provided are enormously beneficial and additionally provide opportunities to collaborate on issues facing all municipalities. CONCLUSION Several years ago, I was sitting in a board meeting when an astonishingly large roach ran past me. Being raised in Alabama, I am adept in all manners of personal roach eradication and was prepared to use my high heel to rapidly address this situation. Fortunately for the roach, the successful bidder on the sanitary sewer lagoon mowing contract was much quicker than me. He leaped out of his chair, removed his hat, scooped up the roach and tossed it out the back door. It was a remarkable feat of quick thinking, physical agility and selflessness. Over the years, my municipal law career has been defined by kangaroos, miniature horses, algae-eating grass carp, hospitals, falling walls, sewer backups and witnesses showing up to municipal court in all forms of attire, including (my personal favorite) SpongeBob SquarePants pajama pants, flip-flops and a very thin, grey shirt (no undergarments). While some might say my career has been – in a word – a circus, it has been much more than a series of entertaining events. More accurately and importantly, it has been rewarding, challenging and important. I am professionally fulfilled, grateful for the municipal attorneys who trained and supported me and hopeful that my one or two words of guidance over the years have made a difference for those serving in the circus of municipal government. ABOUT THE AUTHOR Beth Anne Childs represents the Oklahoma municipalities of Bristow, Wynona and Luther and is the city prosecutor for the cities of Owasso and Coweta. She has represented numerous other municipalities and serves on the Board of Directors for the International Municipal Lawyers Association and the Oklahoma Association of Municipal Attorneys. ENDNOTE 1. Student Debt: The Holistic Impact on Today’s Young Lawyer, published by the American Bar Association’s Young Lawyers Division in 2021.
THE OKLAHOMA BAR JOURNAL 10 | NOVEMBER 2022 Municipal Planning and Zoning: An Overview of State Statutes and Standards for Review By Beth Anne Childs THE IDEA OF THE PLANNING COMMISSION originated in the Standard Planning and Zoning Enabling Acts.1 These were developed under Herbert Hoover in the 1920s when he served as secretary of commerce.2 The model ordinances were drafted in order to standardize land use planning procedures across the United States.3 Almost all states adopted the Standard Acts, which authorized cities, towns and counties to establish planning commissions and adopt zoning and subdivision requirements. The acts defined and established essential duties of the planning commissions and boards of zoning appeals or adjustment.4 The purpose of zoning regulations is to promote the health, safety and welfare of Oklahoma communities. This generally requires boards and commissions to weigh the rights of those seeking rezoning or a particular land use with the rights of nearby property owners. Most citizens, however, do not think much about planning and zoning decisions until their own properties are impacted. This article provides a basic summary of state statutes and a basic overview of the standards for review, particularly at the trial court level. Municipalities are authorized to enact zoning regulations to promote the health, safety and welfare of the community.5 However, in order to enforce zoning codes, cities and towns must have both a Planning Commission (Zoning Commission) and a Board of Adjustment.6 The municipality’s power to enact zoning ordinances is legislative, while the Board of Adjustment’s power is adjudicative in nature.7 PLANNING AND ZONING COMMISSION The Planning Commission is tasked with recommending the boundaries of the various original districts as well as appropriate regulations to be enforced therein.8 The commission consists of not less than five citizens, all of whom must be residents of the municipality.9 The members are to be nominated by the mayor and confirmed by the governing body.10 Each member serves for a term of three years, with appointments to fill vacancies for any unexpired term.11 Planning Commission members serve without pay, except in cities having a population of more than 200,000, and in that case, the commissioners may receive per diem as set by the governing body.12 In addition to the duties set forth in 11 O.S. §45-101 through 45-106, highlighted duties and responsibilities of the Planning Commission include making recommendations to the governing body on community development issues, including: The zoning ordinance and zoning map amendments; Preliminary and final subdivision plats; Special permits; Land use plans; Capital improvement plans; Updating the comprehensive plan; Providing an opportunity for long-term, in-depth study of major issues; and Municipal Law
NOVEMBER 2022 | 11 THE OKLAHOMA BAR JOURNAL Providing an opportunity to promote intergovernmental cooperation with school districts, utilities and neighboring jurisdictions. There are some very basic legal standards to consider when advising a planning commission, governing body or private client. One of the most important is that the Oklahoma Supreme Court has consistently held that unless a zoning decision of a municipality is found not to have a substantial relation to the public health, safety, morals or general welfare or to constitute an unreasonable, arbitrary exercise of the police power, its judgments will not be overturned by the district court.13 Also, courts may not substitute their judgment for that of the municipal legislative body.14 The court’s duty will be to determine whether the restriction on the use of the property is a reasonable exercise of power under the zoning statute.15 When the validity of a legislative classification for zoning purposes is fairly debatable, legislative judgments must be allowed to stand.16 In representing public bodies, the best way to explain to elected and appointed officials how to evaluate planning and zoning
THE OKLAHOMA BAR JOURNAL 12 | NOVEMBER 2022 matters is to ensure that decisions are not arbitrary but based upon good reasons for approval or denial. This standard was highlighted in McNair v. City of Oklahoma City.17 In McNair, the Oklahoma Supreme Court held, “When the validity of a municipal zoning ordinance is challenged, it is the duty of the Court to determine whether passage of such ordinance is an arbitrary, unreasonable and capricious exercise of the police power.”18 Practitioners also need to be aware that imposition of a particular zoning regulation, if not thoughtfully considered, can constitute a taking without just compensation. A government taking is generally thought of as a physical taking of a landowner’s property. However, if a regulation goes too far, it will be recognized as a taking. Regulatory takings were first recognized by the United States Supreme Court in 1922.19 A regulatory taking occurs when a governmental regulation limits the use of private property to such a degree that it effectively deprives the property of any value.20 The United States Supreme Court has recognized regulatory takings in two situations: 1) when a regulation leaves the landowner with no economically viable use of the land (also known as a categorical taking) and 2) based upon the balancing test established in Penn Central Transportation Co. v. New York City.21 A categorical taking occurs when a regulation denies all economically beneficial or productive use of land.22 For example, in Lucas v. S.C. Coastal Council, the United States Supreme Court held that a law prohibiting the owner of beachfront property from erecting any permanent structures rendered the property valueless, which therefore resulted in an unconstitutional taking.23 If the regulation does not deprive the property of all economic value, courts will analyze the regulation under the Penn Central balancing test.24 Penn Central is arguably one of the more interesting land use cases to be decided by the United States Supreme Court. It involved a challenge to New York City’s landmark preservations law, which prevented the Penn Central Transportation Company from constructing a skyscraper on top of Grand Central Station.25 The court determined that a city will not be required to pay compensation to a property owner under the Takings Clause of the Fifth Amendment when it designates the property as a landmark and limits its development.26 In so ruling, the Supreme Court established a three-part balancing test that requires consideration of 1) the character of the state action, 2) the economic impact of the regulation and 3) the extent to which the regulation has interfered with a distinct investment-backed expectation.27 Some of the most contentious cases involve applications to rezone property from residential to commercial development. There were several cases that were decided in the 1980s by the Oklahoma Supreme Court and the Oklahoma Court of Civil Appeals that highlighted matters that remain relevant today. One such case is Lynch v. City of Oklahoma City.28 The Lynch case involved two sisters who inherited property with the family home from their mother. The home was torn down
NOVEMBER 2022 | 13 THE OKLAHOMA BAR JOURNAL after the death of the mother due to vandalism. It stood vacant for several years, during which time the sisters continuously attempted to sell the property, which was on a corner lot adjacent to an existing strip shopping center. The owner of the strip center offered to purchase the property subject to the lot being successfully rezoned to commercial.29 Several blocks in this area had strip centers zoned for various levels of commercial usage.30 The sisters made application to the city to rezone the lot and asked that the single-family dwelling classification be rezoned to local commercial.31 Intervenors Maureen Anderson and Putnam Heights Preservation Area Inc. entered the case in support of the city and strenuously objected to the rezoning application.32 After a full hearing before the City Council, the application was denied.33 The sisters filed suit in Oklahoma County District Court, challenging the decision by the City Council and sought injunctive relief to prohibit the city from interfering with their use of the lot for uses found within the requested commercial zoning classification.34 The trial court enjoined the city from enforcing the residential zoning and ordered rezoning of the property to commercial with a list of prohibited uses and other restrictions.35 The Court of Appeals upheld the order of the trial court, enjoining the city from enforcing residential development, but reversed and remanded with instructions to vacate the portion of the order rezoning the property to a particular commercial category.36 In its opinion, the court noted that the standards by which the trial court’s exercise discretion must be guided in zoning matters were clearly and succinctly set out in Garrett v. City of Oklahoma City.37 It also provided a reminder that, “In rezoning actions of this kind, the Court must look beyond the findings and conclusions of the trial court and consider the basic physical facts appearing in the record to ascertain whether the reasonableness of the ordinance is fairly debatable.”38 It is interesting that many elements of the Lynch case remain relevant 40 years later. There were property owners struggling with changing development in the area and, originally, an inability to make it viable for use in the then-current market. There were also surrounding property owners who meticulously worked to maintain the integrity of their homes and neighborhood and vehemently opposed increased intrusion of commercial development. The trial judge attempted to fashion a remedy allowing commercial use subject to restrictions that addressed many of the concerns raised by the city and neighborhood residents. The record does not reflect ultimate resolution following remand. It does, however, highlight the competing interests of landowners seeking rezoning and the impact on their neighbors. BOARD OF ADJUSTMENT Pursuant to state statute, the Board of Adjustment consists of five members, each appointed for a term of three years.39 Board members are removable for cause by the governing body upon written charges and after a public hearing.40 Vacancies are filled for any unexpired term.41 The Board of Adjustment is statutorily responsible to hear and decide 1) appeals of decisions made by an administrative official in the enforcement of any zoning ordinance, 2) special exceptions to zoning ordinances and 3) variances from the terms, standards and criteria pertaining to an allowed use category within a zoning district.42 One of the most important roles, however, is to review and consider variances to the zoning code. A variance from the terms, standards and criteria Some of the most contentious cases involve applications to rezone property from residential to commercial development. There were several cases that were decided in the 1980s by the Oklahoma Supreme Court and the Oklahoma Court of Civil Appeals that highlighted matters that remain relevant today.
THE OKLAHOMA BAR JOURNAL 14 | NOVEMBER 2022 of an allowed use category within a zoning district authorized by the zoning code may be granted only upon a finding that: 1) Application of the ordinance to the particular piece of property would create an unnecessary hardship; 2) Such conditions are peculiar to the particular piece of property involved; 3) Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of the ordinance or the comprehensive plan; and 4) The variance, if granted, would be the minimum necessary to alleviate the unnecessary hardship.43 Appealing decisions from the Board of Adjustment is different than review of other types of municipal decisions because the time limits for appeal are set by ordinance rather than state statute.44 Additionally, notice of appeal must be filed with both the municipal clerk and the clerk of the Board of Adjustment and set out the grounds for the appeal.45 Upon receipt of the notice of appeal, the board must file all records pertaining to the record to the district court clerk.46 The matter is then tried de novo by the court.47 One of the more recent cases on appeals from a Board of Adjustment is Mustang Run Wind Project, LLC v. Osage County Board of Adjustment.48 Although this case involved an appeal from the decision of a county Board of Adjustment to deny a request for a conditional use permit,49 the reasoning of the court is no less instructive. Citing the United States Supreme Court in City of Edmonds v. Oxford House, Inc., the Mustang Run Wind court noted, “Land use restrictions aim to prevent problems caused by the ‘pig in the parlor instead of in the barnyard.’”50 Decisions of the board cannot be arbitrary or unreasonable and must be based upon the evidence submitted and fixed premises.51 In evaluating conditional use permits, the decision of the Board of Adjustment is not legislative but quasi-judicial based upon facts presented.52 CONCLUSION Planning and zoning are critically important to the orderly development of all communities. In summary, planning commissions, boards of adjustment and governing bodies must carefully consider the relevant facts and the standards very generally discussed in this article and ensure compliance with state statutes and notice requirements. Following these standards will help ensure the due process rights of applicants and facilitate development that is in the best interests of the health, safety and welfare of the community. ABOUT THE AUTHOR Beth Anne Childs represents the Oklahoma municipalities of Bristow, Wynona and Luther and is the city prosecutor for the cities of Owasso and Coweta. She has represented numerous other municipalities and serves on the Board of Directors for the International Municipal Lawyers Association and the Oklahoma Association of Municipal Attorneys. ENDNOTES 1. Standard State Zoning Enabling Act and Standard City Planning Enabling Act. 2. Id. 3. Id. 4. Id. 5. 11 O.S. §43-101. 6. Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶7. 7. Town of Wellston v. Wallace, 2007 OK CIV APP 2, ¶7, citing Vinson v. Medley, 1987 OK 41. 8. 11 O.S. §43-109. 9. 11 O.S. §45-102. 10. Id. 11. Id. 12. Id. 13. Mid-Continent Life Ins. Col, 1985 OK 41, ¶9. 14. City of Tulsa v. Mobley, 1969 OK 85, ¶7. 15. Id. 16. Id. 17. McNair v. City of Oklahoma City, 1971 OK 134. 18. Id at ¶12. 19. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). 20. Id. 21. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). 22. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992). 23. Id. 24. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). 25. Id. 26. Id. 27. Id. 28. Lynch v. City of Oklahoma City, 1981 OK CIV APP 11. 29. Id at ¶5. 30. Id. 31. Id at ¶3. 32. Id at ¶2. 33. Id at ¶3. 34. Id. 35. Id at ¶11. 36. Id at ¶19. 37. Id at ¶18. 38. Id at ¶15. 39. 11 O.S. §44-101. 40. Id. 41. Id. 42. 11 O.S. §44-101. 43. 11 O.S. §44-107. 44. 11 O.S. §44-110(B). 45. Id. 46. 11 O.S. §44-110(C). 47. 11 O.S. §44-110(D). 48. 2016 OK 113. 49. Id at ¶0. 50. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732, (1995), quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365,388 (1926). 51. 2016 OK 113, ¶30. 52. Id.
THE OKLAHOMA BAR JOURNAL 16 | NOVEMBER 2022 The Oklahoma Open Meeting Act (OMA), found in Title 25 of the Oklahoma Statutes, Sections 301 through 314, was intended to “encourage and facilitate an informed citizenry’s understanding of the governmental processes and government problems.”1 A version of the OMA was originally enacted in 1959 and has been substantially revised on numerous occasions since then. The bulk of what comprises the OMA today was signed into law by Gov. David Boren in June 1977. The spirit of the OMA, from the beginning, was to create, ensure and protect transparency at all levels of Oklahoma government. The act is intended to encourage the public to participate in state government while better understanding the governmental processes. In furtherance of this important goal, the OMA contains provisions governing notice of meetings, meeting agendas, business to be discussed and resolved during meetings and what transpires during meetings. It is the responsibility and duty of all attorneys representing municipalities to have a thorough mastery of the act and its mandates. The Oklahoma Court of Appeals has made clear that public officers must have a clear understanding of the OMA: The Open Meeting Act is not obscure or incomprehensible. On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word. Each member of a covered public body should have taken that ten minutes as soon as the Act became effective … Lack of familiarity is no excuse.2 While the language and requirements of the OMA are generally clear and understandable, potential peril awaits those who fail to fully comprehend each discrete section of the act. Having a comprehensive appreciation for the OMA and all it compels and prohibits will keep your city, town and elected officials secure from adverse penalties, including conviction of a misdemeanor crime with an accompanying fine and invalidation of actions taken by the public body. MEETINGS THAT ARE SUBJECT TO THE OMA The OMA comes into play whenever a public body holds a meeting. “Public body” is defined in §304(1) of Title 25 and includes all governing bodies of all municipalities as well as all boards, commissions, authorities and public trusts. Essentially, any public body charged with the responsibility of expending public funds or administering public property is included within the reach of the OMA. This encompasses city councils or commissions, planning commissions, boards of adjustment and other municipal bodies with decision-making authority, bodies supported in whole or part by public funds and those entrusted Municipalities and the Open Meeting Act By Julie Trout Lombardi “If you’re guided by a spirit of transparency, it forces you to operate with a spirit of ethics. Success comes from simplifying complex issues, address problems head on, be truthful and transparent.” – Rodney Davis “Trust happens when leaders are transparent.” – Jack Welch Municipal Law
NOVEMBER 2022 | 17 THE OKLAHOMA BAR JOURNAL with expending public funds. The definition of a public body does not include the judiciary, Legislature or meetings of administrative staff employed by a public body. A public body additionally does not include committees that are purely informational or charged solely with fact-finding or advisory committees with no decision-making authority.3 In conjunction with §304(1), §304(2) defines a “meeting” as conducting business of a public body by a majority of its members meeting together. Meetings shall not include informal gatherings of a majority of the members of the public body when no business regarding the public body will be discussed. However, attorneys should be aware of several potential pitfalls when determining whether or not a meeting is actually being held. First and foremost, attorneys for public bodies should be vigilant when a majority of the members are in attendance at a social event such as a reception, chamber of commerce meeting, ribbon cutting or opening of a new business, or holiday parade or celebration. Members of a public body should be cautioned not to gather closely in groups sufficient to constitute a quorum and to refrain from discussing any business affecting the public body. Members of a public body are best advised not to travel to such events in the same vehicle or congregate within a small group at the event. Having a staff member or citizen stand with members of a public body is also advisable because they may later testify that no public business was discussed while they were present. Far more insidious than gathering at community and social functions are the accidental meetings that occur when members of a public body congregate prior to a meeting or linger afterward while visiting. If a quorum is present in such a group and public business is discussed, a new meeting has been convened and necessarily violates the OMA because the required notice has not been given, and no agenda advising the public of the meeting and topics to be discussed has been posted. This often, unfortunately, occurs when several members of the public body begin rehashing an item on the agenda once the meeting has ended. Likewise, one member of a public body may not meet with other members outside of a public meeting to obtain a consensus on an item of business.4 Caution should also be exercised with email. A meeting is created and the OMA is violated whenever a public body
THE OKLAHOMA BAR JOURNAL 18 | NOVEMBER 2022 member sends an email regarding business of the public body to the other members or even responds with “reply all” to such emails. Municipal attorneys, and all attorneys representing public bodies, should be vigilant both prior to and after scheduled meetings to prevent members from congregating, discussing and creating an illegal meeting. BASICS OF THE OMA Four types of meetings are addressed under the OMA: regularly scheduled meetings, special meetings, emergency meetings and continued or reconvened meetings. For regularly scheduled meetings, §311 of the OMA requires that notice of all meetings scheduled for the following year be filed with the municipal clerk no later than Dec. 15 of each year. Such notice must include the date, time and place of each meeting, and the meeting time and date may only be changed with 10 days’ notice. In addition to regularly scheduled meetings, a public body may hold a special meeting after giving 48 hours’ notice of the date, time and place of the meeting. Notice of the special meeting must be given in writing, in person or by telephone to the municipal clerk as well as those who have submitted written requests to receive notice of a meeting.5 New business is not permitted at special meetings.6 Reconvened or continued meetings are governed by §311(A) (11) of the OMA, which provides that only matters contained on the original agenda may be discussed. Notice of such a meeting, like regularly scheduled and special meetings, must be given. Care should be taken by the public body’s attorney to ensure that discussion and action by the body do not exceed the boundaries of the original meeting. When the original meeting is recessed, the time, date and place of the meeting to be reconvened must be announced. An emergency meeting of a public body may be held if needed. An emergency sufficient to justify a meeting is defined as a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss.7 Prior to an emergency meeting, a public body must only give notice that is reasonable under the circumstances, but it must be given as soon as possible per §311(A)(13) of the OMA. A public body must post notice and the meeting’s agenda in prominent view for a regular or special meeting.8 The 24-hour period excludes weekends and holidays, the agenda must be visible the entire 24 hours in advance9 and it must be posted at the principal office or at the meeting location.10 In addition, a public body must post regularly scheduled meetings on its website, but this does not substitute for the posting requirements above under §311.11 Equally as important as posting adequate notice is the wording of a public body’s agenda. Section 311(B) of the act requires that the agenda contain sufficient information for the public to identify the items of business to be discussed and resolved. In Haworth Bd. of Ed. v. Havens,12 the court stated, “Agendas must be worded in plain language, directly stating the purpose … The language used should be simple, direct, and comprehensible to a person of ordinary education and intelligence.” Simply stated, a public body cannot discuss an item or take action upon it if the item is not on the agenda. Items must be sufficiently detailed to give a reasonable person information regarding what specifically will be discussed and voted upon at the meeting. Descriptors such as “Fire Chief Report” are likely insufficient and require additional details describing what information will be covered in the report. While a citizen might be uninterested in the fire department’s latest response statistics, the same citizen may very much care that a new fire station has been proposed for construction and may wish to attend the meeting where the item is discussed. Any discussion of the OMA would be remiss not to include the Four types of meetings are addressed under the OMA: regularly scheduled meetings, special meetings, emergency meetings and continued or reconvened meetings.
NOVEMBER 2022 | 19 THE OKLAHOMA BAR JOURNAL recent case involving the city of Norman. In Fraternal Order of Police v. City of Norman, 2021 OK 20, the district court determined that language in the city’s Dec. 4, 2020, agenda “was deceptively worded or materially obscured the stated purpose of the meeting and is, therefore, a willful violation of the Act.” At issue was an agenda item listing consideration of the city’s proposed budget. The district court found that while a reasonable citizen might have anticipated that the budget might or might not be approved, such person would not have understood that there might be a defunding (of the police department) or a reallocation or modification of any department’s budget. The city of Norman appealed the matter and ultimately obtained a ruling from the Supreme Court of Oklahoma. That court upheld the district court’s ruling and found the agenda language had been deceptively vague and did not provide notice to the public that new, additional amendments would be entertained at the meeting. As a result of this opinion, many municipalities modified language on their agendas to show that all items may be approved, denied, amended, postponed, acknowledged, affirmed or tabled. This change is designed to provide notice of any possible action a public body might take and avoid “deceptively vague” language. In addition, most municipalities have tightened up their agenda language in general and are much more observant in advising when the public body is “off the agenda.” New business is covered in §311(A)(10) of the OMA and is described as “any matter not known about or which could not have been reasonably foreseen prior to the time of posting (the agenda).” “Reasonably foreseen” does not cover items mistakenly omitted from the agenda or a subject that staff or a member of the public body recently learned about and considers important. New business should only be used occasionally, at best, and only when an item is not reasonably foreseeable prior to posting the agenda. The vote of each individual member in a meeting must be publicly cast and recorded in the meeting minutes.13 Failure to meet either requirement may result in invalidation of the action.14 The vote of each member should be individually recorded in the minutes. The minutes should also include identification of all members present and absent, a listing of all matters considered and all actions taken and an official summary of the proceedings.15 Minutes of public meetings should always be open and available to the public, and it is presumed that they should be available for quick access once drafted and subsequently approved. Delaying a request for meeting minutes to “check with the city manager or mayor” is a dangerous practice and will not be indulged by the courts. If a public body or its attorney discovers that action taken by the body did not comply with the OMA, corrective action should be taken swiftly. In fact, the public body must completely redo and repeat the action in its entirety while adhering to OMA requirements. Failure to do so will result in invalidation of the item and other potential issues. A quorum is required to hold a meeting of a public body. Generally speaking, a quorum is defined as a majority of all the members of a public body,16 although charter cities may enact different requirements. If a quorum is not present at a scheduled meeting of a public body, the meeting cannot be held and must be rescheduled. The cancellation of a meeting should adhere to the same posting requirements provided for the notification of meetings. Strict attention must be paid to the existence of a quorum if a member of the public body recuses themselves from discussion and consideration of an item. Specifically, best practices require a recusing member to physically remove themselves from the meeting room, and the quorum must still exist after the recusing member leaves the room. EXECUTIVE SESSION Generally speaking, executive sessions are not permitted unless they are specifically authorized in §307 of the OMA. Permissible purposes for an executive session, in pertinent part, include: Personnel matters including hiring, appointment, promotion, demotion, disciplining or resignation The purchase or appraisal by the public body of real property Confidential communications with the public body’s attorney concerning a pending investigation, claim or action Discussion of matters where disclosure would violate confidentiality requirements of state or federal law Discussion of negotiations concerning employee groups Proposed executive sessions must be noted on the agenda and include a specific citation of authority under §307 allowing the executive session. An affirmative vote of a majority of the public body is required to convene an executive session. Votes on an item cannot be taken in executive
THE OKLAHOMA BAR JOURNAL 20 | NOVEMBER 2022 session but must be taken in the open meeting once reconvened. Notes must be kept of all discussions in executive session but may be general in nature and reflect that the subject matter of the executive session, as listed on the agenda, was discussed. If an executive session is convened to discuss a personnel matter, several restrictions must be recognized and honored. First, the employee to be discussed must work directly for the public body and not one of its employees. For example, most city managers, and some city attorneys, are employed by a municipality’s city council or commission. An executive session to discuss a city manager’s hiring, termination, discipline, salary or annual evaluation is permissible, and the job title should be listed with specificity on the agenda. However, an employee of the city manager, such as the finance director or parks superintendent, would not be appropriate or permissible because those employees do not work directly for the public body. An executive session is inappropriate for the public body to discuss such an employee or even to advise the city manager of the public body’s position regarding the employee’s employment, promotion, demotion, discipline, etc. Failure to follow this strict requirement may greatly assist an aggrieved employee in stating a cause of action against the municipality if litigation ensues and may even violate the municipality’s charter. At best, such action is invalid. Executive session is also an appropriate vehicle for a public body to discuss legal claims and litigation matters with its attorney. Pursuant to §307 of the act, the specific litigation or claimmust be listed with specificity under the item on the agenda, and the public body’s attorney must be present in the executive session. If the public body’s attorney is not in attendance, the executive session is both invalid and illegal. Executive session is only lawful under §307 if the public body’s attorney has determined that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation in a pending or imminent legal matter. Discussion of the purchase or appraisal of real property restricts who may be present in an executive session. The public body may include staff and its attorney in an executive session discussion, but under no circumstances may a landowner, real estate salesperson, broker, developer or other people who may profit directly or indirectly by a proposed transaction be present or participate in an executive session under this section unless they have executed an agreement to represent the city. ALLOWING PUBLIC COMMENT AT MEETINGS A public body is not required to provide an opportunity for citizens to speak at meetings but may do so if the public body chooses.17 However, this issue is fraught with potential pitfalls for the unwary. If a public body chooses to permit public comment at meetings, it is advisable to implement a policy limiting the time allowed for each speaker and what subjects may be covered. One option is to limit citizen comment only to items listed on the agenda. If public comment is not restricted to the agenda items, members of the public body must not engage in the discussion or comment lest they violate the OMA’s notice and agenda provisions. While citizens are not restricted to discussion of items listed on the agenda, members of the public body must always adhere to that requirement. However, even if members of the public body refrain from commenting on non-agenda matters, other hazards exist. If no time limit is imposed, a citizen may speak for a long period of time and resist attempts by the mayor, chair or parliamentarian to cease. Public body members may additionally find themselves involved in a recitation of a citizen’s personal grievances against themselves or another citizen, listening to potentially defamatory comments against a staff member, neighbor, citizen or, as occurred in at least one case in another state, be
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